SB 237: Employment Non-Discrimination

Sen. Leticia Van de Putte

Senate Bill 237 by Sen. Leticia Van de Putte (D-San Antonio) would prohibit employment discrimination on the basis of sexual orientation or gender identity and expression. Under current law it is illegal in Texas to discriminate in employment based on a person’s race, religion, gender, national origin, age, or disability. It remains legal to discriminate based on a person’s sexual orientation or gender identity or expression. There is no federal law prohibiting employment discrimination against the LGBT community (although, according to  a 2011 poll by the Center for American Progress, 9 out of 10 American voters erroneously believe that federal law does provide LGBT people employment protections).

This is the first time that a bill to prohibit employment discrimination based on sexual orientation or gender identity or expression has been filed in the Senate.

SB 237 is identical to HB 238 by Rep. Mike Villarreal (D - San Antonio).

Why file the same exact bill twice, one in the House and once in the Senate?

Sets of identical, or nearly identical, bills filed in both the House and Senate are called "companions." Bills are filed in these sets because of a quirk in the way legislation is passed in the Texas legislature. The Texas Constitution requires that bills be "read" on three separate days in both the House and Senate before they become law. That doesn't mean that the whole bill is read, it just means that the bill is mentioned and that some action is taken.

So if a bill is introduced in the House (that means it starts with "HB" (for "House Bill")) its first "reading" is when the bill is sent to one of several dozen House committees for consideration. If the committee chooses to consider the bill they will hold a public hearing (when anybody can walk off the street and tell the committee what they think of the bill) and then, if they think the bill is a good idea, the committee can vote to "report favorably" on the bill, basically recommend that the entire House should vote on it. Bills that are reported favorably are then sent to one of several "calendar" committees that schedule the bill for its second "reading."

The legislature only meets for 140 days, and this process can take one to three months.

HB 238: Prohibit Employment Discrimination

Rep. Mike Villarreal

House Bill 238 by Rep. Mike Villarreal (D-San Antonio) would prohibit employment discrimination on the basis of sexual orientation or gender identity and expression. Villarreal has filed similar legislation for the last 5 sessions (78R HB 1136, 79R HB 1515, 80R HB 900, 81R HB 538, 82R HB 665).

Under current law it is illegal in Texas to discriminate in employment based on a person’s race, religion, gender, national origin, age, or disability. It remains legal to discriminate based on a person’s sexual orientation or gender identity or expression. There is no federal law prohibiting employment discrimination against the LGBT community (although, according to  a 2011 poll by the Center for American Progress, 9 out of 10 American voters erroneously believe that federal law does provide LGBT people employment protections).

HB 238 would allow the Texas Workforce Commission's Civil Rights Division (TWC CRD) to investigate claims of employment discrimination based on sexual orientation or gender identity or expression in the same way that it investigates claims of discrimination based on the other protected attributes. The TWC CRD allows individuals who believe they have experienced prohibited employment discrimination to file a complaint in person in Austin, over the phone, or via notarized form. If the complaint warrants investigation the TWC CRD pursues it further. The Legislative Budget Board (an agency of the State of Texas) estimates that if employment discrimination based on sexual orientation or gender identity or expression was prohibited that the TWC CRD would need to investigate 474 credible cases a year.

There is a great deal of evidence that employment discrimination is pervasive and widespread in Texas:

• Men in same-sex relationships in Texas make 9% less on average than their straight married counterparts according to information from the Census Bureau,
• Households in Texas headed by two women make one average 11% less than households headed by a man and a woman according to information from the Census Bureau,
• In a 2010 survey 26% of transgender Texans reported losing a job because of their gender identity or expression.

Prohibiting employment discrimination based on sexual orientation or gender identity or expression has overwhelming public support. In a 2010 poll conducted by Equality Texas,

• 75.4% of registered voters in Texas said they support ending employment and housing discrimination based on sexual orientation,
• 69.7% said they supported ending employment and housing discrimination for transgender citizens.

With the reality of employment discrimination clear, a mechanism already in place for investigating it and strong public support for addressing the issue why has Rep. Villarreal's decade long effort to pass legislation thus far been fruitless? Because there is a disconnect between the people of the state of Texas and the 183 elected officials who create laws in Texas. If HB 238 is to become law we must bridge that disconnect, and the only way to do it is by contacting your members of the legislature and telling them that you expect their support for HB 238.

If you live in Rep. Villarreal's district please call and thank him for his support, and ask what you can do to help. You can reach him at (210) 734-893.


If you don't know who represents you go here to find out.  

Certified Vote Published for "Family and Traditional Values" Amendment

The certified results on the House vote to accept amendment 143 to House Bill 1 were posted on Friday. Amendment 143 by Rep. Wayne Christian (R-Center) requires state universities that have a center for gender and sexuality to equality fund a "center for family and traditional values." (read LQ's original coverage of the amendment.)

The contingent results of House votes are posted in real time on the Texas Legislative Online. The official results, however, contain important information about why representatives choose to vote the way they did and, in some circumstances, explains that members intended to place a different vote than what was recorded. This was explained in LQ's ongoing series Bipartisan Votes Key to LGBT Legislative Successes:

"In cases of record votes each member of the house uses a voting machine embedded into their desk to record their vote. The machine allows them to vote either 'yea', 'nay' or 'present not voting' for each item before the House.

If a member is away from the House Chamber due to illness, family emergency or similar circumstance they can ask a fellow member to request that the Speaker excuse them, if a vote happens while they are away they are notated as being "Absent-Excused" in the record. Typically a member who is "Absent-Excused" will miss an entire day of votes.

The House often meets for hours on end without breaks. Members must often step out of the chamber the eat meals, meet with constituents or take bathroom breaks. If a member happens to be away from their desk and unable to vote when a record vote is taken they are recorded as being 'absent' from that vote.

So on any vote there are five different ways that a members position could be recorded: Yea, Nay, Present - Not Voting, Absent-Excused and Absent.

The issue is further complicated by a long standing tradition of members voting for each other. Many representatives feel that it is appropriate for them to record a vote on the machine embedded in the desk of a colleague who is absent, obstinately voting in the manner that member would and sparing them a record of being "absent" for a vote. The practice is strictly prohibited by House Rule 5, section 47, but it still happens (and was famously defended by Rep. Debbie Riddle after she was caught, on tape, voting for Rep. Kuempel).

These votes are jokingly referred to as "voting machine malfunctions". The House Rules allow members to enter a statement in the official house record explaining that their voting machine "malfunctioned" and stating how they intended to vote. Members can enter a similar statement if they are absent for a vote and would like a record of their position on the record."

In the case of the vote on Amendment 143 five members entered examinations of how they intended to vote. Rep. Roberto Alonzo (D-Dallas) explained that his voting machine did not register his vote and that he intended to vote "Nay." Rep. Joe Deshotel (D-Port Arthur) and Rep. Mike Villarreal (D-San Antonio) both said that they intended to vote against the amendment, although their voting machine registered their votes as "Yea." Marisa Marquez (D-El Paso) stated that she intended to vote "Nay," but that her machine recorded her as being "present, not voting."

Sarah Davis (R-Houston), the sole Republican shown as voting against the amendment by the uncertified results, stated that she intended to vote for it. This conforms with a statement made by her staffer to Legislative Queery. Davis, who received the endorsement of the Houston Log Cabin Republicans during the campaign, has not responded to requests that she explain her support for the amendment.

The uncertified results showed amendment 143 passing 110 yeas, to 24 nays. If these votes had been recorded as the members intended the vote would have been 109 yeas to 26 nays.

Rep. Rafael Anchia, who voted "present, not voting," did not enter a note in the record. Anchia represents part of the historic "gayborhood" of Oaklawn in Dallas and is historically a staunch ally of the queer community. His chief of staff, Timothy Dickey, told the Dallas Voice:

“He [Anchia] said the PNV [present, not voting] was basically just a, ‘This amendment’s stupid. I’m not even going to grace it with a yes or no. It’s a ridiculous amendment, and that’s what the PNV was. … We’re going to try to talk him out of doing that in the future. A ‘No’ is stronger than a PNV.”

LQ's House scorecard has been updated to reflect the notes entered in the official record.

Budget Amendments Attempt to Elevate Straight, White College Students

Last Friday, April 1, the Texas House began its deliberation of the state's budget. Two amendments offered by Rep. Wayne Christian (Shelby, Nacogdoches, San Augustine, Sabine and Jasper Counties) 14 hours into the 16 hour debate attempted to ensure the continued elevation of straight people and white people in Texas' public universities. One amendment was successful, the other was not.

Christian's first proposed amendment to the budget (amendment #143 of the debate) required public universities in Texas who have a "gender and sexuality center or other center for students focused on gay, lesbian, bisexual, pansexual, transexual, transgender, gender questioning, or other gender identity issues" to spend an equal amount of money to fund a center for "family and traditional values." Every university in the state is facing a budget crisis. Christian's amendment would effectively double the cost of having gender and sexuality centers, which will cause schools which do not have them to be less likely to create them, and force schools which do have them to slash their center's budgets to make up the difference.

Rep. Joaquin Castro (D-San Antonio) questioned why Christian felt that it was necessary for the legislature to dictate what kind of centers universities should have. Christian explained that he understood that schools were allowed to create gender and sexuality centers and that the legislature didn't have the power to stop them from doing so. To explain his position he offered a simile, suggesting that "if they were teaching students how to make terrorism bombs or murder or whatever" then the legislature would want to be sure that students were also being taught to love America. Likewise, he said, if universities are going to "teach alternate sexual behavior" then they should also teach "traditional values".

Castro, apparently unphased by Christian's comparison of queer people to terrorists (or his gross mischaracterization of the resources provided by college gender and sexuality centers), then asked what "pansexual" meant. Christian said that he didn't know, but that that was the kind of thing that these centers taught. The amendment passed: 110 yeas to 24 nays, the entire debate took 5 minutes. No one spoke against the amendment and only Castro questioned the need for it.

Christian's next proposed amendment (amendment #144) required Texas' universities to dedicate 10% of their classes to teaching "western civilization." Castro again questioned whether the legislature had the power to directly dictate what state universities taught. This time, however, he went so far as to raise a point of order against the amendment, claiming that it created "general law" (according to the House rules the budget can only be used to create funding for state agencies, it can not be used to create new laws). Speaker Joe Straus (R-San Antonio) ruled that the amendment did not create general law and debate continued.

Rep. Mike Villarreal (D-San Antonio) then spoke against the amendment. He questioned what Christian meant by "western civilization" and said that it was inappropriate for the legislature to start creating quotas about what kind of classes universities offered. Rep. Eddie Lucio III (D-San Bonito) then rose and asked Villarreal "have you been presented any information that defines 'western civilization' prior to this amendment?" Villarreal indicated that he had not (indeed, state statute contains no definition of "western civilization"). Lucio was followed by Rep. Mark Strama (D-Travis Co) who asked if the contributions of African Americans, Mexican Americans or Native Americans to our culture would be included in a "western civilization" class.

Castro made a motion to table the amendment. In accordance with House rules Christian came back to the microphone to explain why he thought that the amendment should not be tabled and to answer questions. Rep. Rafael Anchia (D-Dallas) questioned Christian, trying to get him to explain what "western civilization" meant in the context of his amendment. Christian obfuscated, claiming that experts at the universities would be able to define what he meant. Anchia indignantly replied that the amendment appeared "very political and potentially insulting to the diverse membership of this body."

Rep. Borris Miles (D - Fort Bend Co) then grilled Christian about what parts of history would be included in a "western civilization" class: "would it include the Jim Crow South," he asked Christian "would it include the dragging of James Byrd that happened in your district?" (James Byrd Jr was killed in a horrific hate crime in 1998 in Jasper, TX which is in Christian's district) "It should, if that was part of the history," replied Christian. After much heated debate the vote to table the amendment succeeded: 108 yaes to 27 nays, the debate lasted 26 minutes. Five representatives spoke against the amendment.

Why did an amendment which promoted straight people succeed, while an amendment that promoted white people fail? Why did the people elected to represent us line up to decry racism, but not homophobia/transphobia? Why were members of the House so easily able to identify the coded language of "western civilization," but unwilling to seek a definition of "traditional values?"

Make no mistake, the racism inherit in amendment 144 is readily apparent. I am not naive enough to ask whether the oppression experienced by queer people is the same as the oppression experienced by people of color. There is not a quantifiable unit of measurement for oppression. It is not possible to hold one against the other and I refuse to be so arrogant as to try. This is not a question of "which is worse," but rather why, in this specific instance, homophobia/transphobia prevailed why racism was defeated.

Why? Because, frankly, it's easier to talk smack about someone when they're not in the room. At least 47 members of the Texas House are of African, Hispanic or Asian descent, including all 5 members who spoke against amendment 144. There is not a single out queer member of the legislature, in either the House or the Senate. When Castro questioned the need for amendment 143 he did so as a straight person who doesn't understand the queer experience. When he spoke against amendment 144 he did so as a Hispanic person who is well aware of the systemic racism historically perpetuated by the academic system.

Maybe if a queer person had been there they would have been able to ask questions like

• "What does 'traditional values' mean in the context of this amendment? Do you mean values like integrity, honesty, charity?"
• "Is it the author's belief that "traditional values" are not taught by gender and sexuality centers? Or that 'traditional values' are not shared by LGBT people?"
• "Is it the author's intent that these 'family and traditional values centers' support all families? or just specific types of families? Would a student with two dads, or two moms be welcome at the 'family and traditional value center?'"
• "Is it the author's belief that straight students need additional resources, not available through other venues? Is the author aware of straight students being disowned by their parents for being straight? Or of straight students attempting suicide because of society's disapproval of the straight lifestyle?"

But a queer person wasn't there, so instead we got snickering questions about what "pansexual" means.

It's our fault, really, the queer community's. We can't expect the straight people who've been elected to represent us to understand the queer experience unless we talk to them about it. When was the last time you called your representative and told them what it was like to be a LGBT college student (or high school student)? We are not in the room when decisions like this are made so we have to be certain that the people who are in the room hear from us regularly.

You can see the breakdown of who voted which way on HB 1, amendment 143 at Legislative Queery's new House Scorecard. It's good to know that 24 members of the 150-member house were willing to stand up for what's right (including one republican: Sarah Davis (R-Houston)!). It's disappointing to see who didn't.

In particular I'm disappointed that Anchia, who has historically been a staunch ally of the queer community (and who's district includes parts of the Oaklawn "gayborhood" in Dallas) decided to vote "present, not voting." "Present, not voting" means that the representative is on the floor when the vote takes place, but simply declines to have an opinion on the matter. Anchia should know better. He should know that "family and traditional values" means "straight people and homophobia/transphobia." He should know that amendment 143 will cause fewer universities in Texas to have resources for students who need help facing the transphobia and homophobia in our culture. He should also know that his constituents will not stand by while he cowardly refuses to take a stand on this issue. Anchia can be reached at(512) 463-0746, or by e-mail at Rafael.Anchia@house.state.tx.us